Nicholas v Thomas - a new chapter in private nuisance law?

Nicholas v Thomas - a new chapter in private nuisance law?

The High Court’s decision in Nicholas & Ors v Thomas & Anor [2025] EWHC 752 (Ch) marks a pivotal moment in the evolving law of private nuisance. Building on the widely discussed Supreme Court ruling in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, this case provides critical clarification on how courts are to assess competing land uses - particularly when sensitive uses are involved. The judgment affirms the binary framework introduced in Fearn v Tate, whilst also offering a structured approach to evaluating nuisance claims in complex factual scenarios.

 

Background

In Fearn v Tate, the Supreme Court considered whether the Tate Modern’s 360-degree viewing platform constituted a private nuisance to residents of nearby glass-fronted flats. In the judgement the key question was whether the use of land by both parties was “common and ordinary”. This marked a shift from the traditional “reasonableness” test to a more categorical approach.

Nicholas v Thomas arose in a very different context, whereby a rural dispute in Cornwall had developed between gyrfalcon breeders and their farming neighbours. The claimants bred gyrfalcons for export to the Middle East for racing and gyrfalcons are highly sensitive to noise and visual disturbances. This is heightened during breeding season and the business depends on mitigating these factors. The defendants constructed a barn adjacent to the aviary containing the gyrfalcons during breeding season, despite being warned of these risk factors. The result was the death of three gyrfalcons and significant breeding losses.

 

Legal issues

The claimants brought actions in private nuisance, negligence, and harassment. Central to the nuisance claim was whether the defendants’ actions—constructing a barn during a crucial time for gyrfalcon breeding—constituted an unreasonable interference with the claimants’ use and enjoyment of their land.

The defendants argued that the gyrfalcons’ sensitivity was an uncommon characteristic that made the use of the land uncommon, and that their farming activities were ordinary for the locality. They relied on the “locality principle” and contended that the law of nuisance should not protect against harms arising from such unusual activities.

 

The High Court’s reasoning

The High Court rejected the defendants’ arguments and found in favour of the claimants on both nuisance and negligence grounds.  The case in nuisance succeeded as the defendants’ case that the tort did not protect against the claimants’ loss based on a particular sensitivity of the falcons during breeding season was rejected. The case in negligence was also held as the defendants were under a duty of care “not to cause or permit the falcons to suffer excessive noise or visual threats, in particular during the Breeding Season”¹.

The High Court emphasised that the defendants had been on notice of the particular sensitivities of the gyrfalcons and had proceeded with their construction regardless. This, combined with the timing and proximity of the works, tipped the balance in favour of the claimants. The High Court awarded GDP258,500 in damages, reflecting both the economic loss and the seriousness of the interference.

In doing so, the High Court rejected the argument that the gyrfalcons’ sensitivity disqualified the claim from protection. Instead, it held that the “common and ordinary use” test must be applied with reference to the actual use of the land, not abstract notions of what is typical in a rural setting.

 

Clarifying the post-Fearn landscape

Nicholas v Thomas is a significant case because it confirms that the binary test from Fearn v Tate is not confined to urban or privacy-related disputes. It applies equally in rural and commercial contexts.

The decision also provides a structured approach to applying the test, including:

1. Identifying the use of land by both parties;
2. Assessing whether each use is “common and ordinary” in context;
3. Evaluating foreseeability and notice, especially where sensitive uses are involved; and
4. Considering the proportionality of the interference.

This framework offers much-needed clarity for those navigating nuisance claims.

 

Closing thoughts

Nicholas v Thomas is a landmark ruling. It demonstrates that the courts are willing to apply the Fearn v Tate framework rigorously, even in cases involving unusual land uses or sensitive commercial operations. By affirming the primacy of the “common and ordinary use” test and rejecting a return to the broader reasonableness standard, the High Court has signalled a clear direction for future nuisance litigation.

This case highlights the importance of understanding not just the physical impact of land use, but also its legal character. The question is no longer whether an interference is “unreasonable”, but whether it disrupts the delicate balance between two competing uses of land.

 

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¹Nicholas & Ors v Thomas & Anor [2025] EWHC 752 (Ch) (08 April 2025)